Cahn v. Word
| Decision Date | 06 January 2020 |
| Docket Number | No. 19-2043,19-2043 |
| Parties | SARA CAHN, Plaintiff - Appellant, v. TERRY M. WORD; TERRY M. WORD, P.C., Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. N.M.)
ORDER AND JUDGMENT*Before HOLMES, KELLY, and MORITZ, Circuit Judges.
Plaintiff-Appellant Sara Cahn brought this action against Defendants-Appellees Terry M. Word and Terry M. Word, P.C. (collectively "Defendants"), alleging they committed malpractice in representing her in another action. She now appeals the district court's grant of summary judgment on statute-of-limitations grounds and has also moved that we certify a related question of statelaw. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's decision and deny her motion to certify.
This diversity action arises from a medical malpractice action brought by Ms. Cahn in which she was represented by Defendants. Ms. Cahn filed the action in New Mexico state court against Lovelace Health Systems and several physicians on April 9, 2009. In her complaint, she sought to hold the defendants liable for failing to inform her that a pelvic ultrasound performed at a Lovelace facility on May 19, 2006 had revealed a potentially cancerous mass on her ovary. She also alleged that a doctor who reviewed the ultrasound informed her in an August 8, 2006 follow-up consultation that she had ovarian cysts that were "nothing to worry about" and diagnosed her with endometriosis. Jt. App. at 7. Because Ms. Cahn could not recall the name of this doctor, Defendants identified him as "John Doe" physician in the April 2009 complaint. Two years after the 2006 ultrasound and follow-up appointment, Ms. Cahn was diagnosed with ovarian cancer when she sought treatment for the same pelvic pain that had prompted the 2006 ultrasound.
On July 1, 2010, through discovery received from Lovelace, Defendants identified Dr. John Berryman as the physician who had misdiagnosed Ms. Cahn at the August 8, 2006 consultation. Defendants amended the medical malpractice complaint on July 9, 2010 to name Dr. Berryman as an individual defendant.
Dr. Berryman moved for summary judgment, asserting Ms. Cahn's claims against him were barred by New Mexico's three-year statute of repose for medicalmalpractice claims. See N.M. Stat. Ann. § 41-5-13 (1978). The state district court denied his motion, ruling that though the statute of repose on Ms. Cahn's claims against Dr. Berryman had expired on August 8, 2009, before she amended her complaint, she could nonetheless proceed against Dr. Berryman because application of the statutory bar would violate her right to due process under the United States and New Mexico constitutions.
The state court certified its decision for interlocutory appeal, and in September 2012 Dr. Berryman filed an application for interlocutory appeal with the New Mexico Court of Appeals. In the application, which Ms. Cahn reviewed, Dr. Berryman alleged that she and Defendants could have identified him sooner through available discovery procedures but failed to do so. The state court of appeals denied Dr. Berryman's application.
Subsequently, in June 2013, Dr. Berryman and Ms. Cahn stipulated to a conditional directed verdict and final judgment in which Dr. Berryman admitted his liability to Ms. Cahn in the amount of $700,000, but reserved his right to appeal the judgment on the ground that her claims against him were time-barred. Ms. Cahn testified that at about this time she believed Defendants had made a mistake in failing to identify Dr. Berryman earlier in the litigation.
Dr. Berryman filed his appeal the following month. Ms. Cahn testified that by this time she understood that another attorney, Felicia Weingartner, had taken over her case. Though Defendants remained counsel of record until late 2014, whenDefendant Word retired, Ms. Cahn testified that she did not think she had any contact with him after the stipulated judgment was entered in June 2013.
On April 30, 2015, the New Mexico Court of Appeals entered its decision in Dr. Berryman's appeal. It reversed the state district court, concluding Ms. Cahn's claims against the doctor were time-barred because they were filed after expiration of the three-year statute of repose and were not subject to a due process exception to the statutory bar.1 The New Mexico Supreme Court affirmed.
Ms. Cahn filed the present action on April 27, 2018, asserting that Defendants committed professional negligence and breached their contractual duty to provide quality legal services by failing to identify Dr. Berryman within the statute of repose for medical malpractice claims and timely name him as a defendant. Defendants moved for summary judgment, arguing that Ms. Cahn's claims against them were barred by the applicable statute of limitations, which requires that legal malpractice claims be brought within four years of accrual. The district court agreed that Ms. Cahn's claims accrued more than four years before she brought this suit, and therefore granted Defendants' motion and dismissed her claims with prejudice.
Ms. Cahn timely appealed the district court's ruling. She has also asked us to certify a question of state law to the New Mexico Supreme Court that relates to one of the arguments the district court rejected in its decision. We address her certification motion, which concerns the continuous representation doctrine, in our discussion below.
We review de novo the grant of summary judgment, viewing the factual record and making reasonable inferences from it in the light most favorable to the non-movant. Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019). Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1265-66 (10th Cir. 2015) (internal quotation marks and citations omitted). Because this is a diversity action, we apply the substantive law of the forum state, New Mexico, to the legal questions before us. See Patterson v. PowderMonarch, LLC, 926 F.3d 633, 637 (10th Cir. 2019).
Ms. Cahn raises three issues on appeal: (1) whether the district court erred in ruling as a matter of law that her legal malpractice claim was untimely because it accrued more than four years before she filed this action; (2) whether the districtcourt erred in refusing to toll the statute of limitations pursuant to the continuous representation doctrine; and (3) whether the district court erred in granting summary judgment on her breach of contract claim. We address each issue in turn.
Under New Mexico law, a legal malpractice claim must be filed within four years of the date of accrual. See Jaramillo v. Hood, 601 P.2d 66, 67 (N.M. 1979) (applying N.M. Stat. Ann. § 37-1-4 (1978)). Accordingly, Ms. Cahn's legal malpractice claims against Defendants are untimely if they accrued before April 27, 2014, that is, four years before she filed this action. The district court held her claims accrued no later than June 2013 and were therefore time-barred.
A claim for legal malpractice in New Mexico accrues "when (1) the client sustains actual injury and (2) the client discovers, or through reasonable diligence should discover, the facts essential to the cause of action." Sharts v. Natelson, 885 P.2d 642, 645 (N.M. 1994) (footnote and internal quotation marks omitted). The essential facts the client must or should have discovered for the statute of limitations to begin to run are that "he or she has suffered a loss and that the loss may have been caused by the attorney's wrongful act or omission." Id. "The question [of] when a client is deemed to have discovered an attorney's malpractice and the resulting injury is generally a question of fact, but where the undisputed facts show that the client knew, or should have been aware of the negligent conduct on or before a specific date, the issue may be decided as a matter of law." Id. at 647 (internal quotation marks and brackets omitted).
Ms. Cahn concedes that she suffered actual injury "at the time that Defendants failed to timely name Dr. Berryman in the medical malpractice lawsuit," Aplt. Opening Br. at 10 n.2, because this alleged negligence ultimately led her to lose her claim against Dr. Berryman. This concession is in accord with New Mexico law, which holds that a party sustains actual injury "when malpractice results in the loss of a right, remedy, or interest, or in the imposition of a liability . . . regardless of whether future events may affect the permanency of the injury or the amount of monetary damages eventually incurred." Sharts, 885 P.2d at 646 (internal quotation marks omitted)). But Ms. Cahn argues here, as she did to the district court, that she did not discover this injury until April 30, 2015, when the New Mexico Court of Appeals overturned the lower court decision that had relied on due process principles to allow her to proceed with her untimely filed claims. Up until this decision, Ms. Cahn asserts, "a reasonable layperson in [her] position would not have reason to believe that her attorney had caused her harm." Aplt. Opening Br. at 12.
We disagree. We begin our analysis by noting that the New Mexico Supreme Court has rejected the proposition that a client is not injured until the final judicial determination that a right has been lost due to alleged malpractice. See Sharts, 885 P.2d at 646. In Sharts, the plaintiff-client alleged his former attorney had committed legal malpractice in drafting covenants that erroneously restricted development of a tract of plaintiff's land. The defendant...
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